‘I Will Now Focus on Justice Sector Reform’

Can Nigeria progress, if it is not restructured politically and economically? Mrs Funke Adekoya, SAN is empathic in her response that it cannot. The legal amazon who was called to the Bar in 1974, turned 70 about a fortnight ago. In an encounter with Onikepo Braithwaite and Jude Igbanoi she explained that her stepping aside from the law firm of Aelex which she co-founded almost two decades ago is not a total retirement from active legal practice, but rather allowing her to have a closer embrace with what may have become her passion, arbitration. She is also rolling up her sleeves to contribute her efforts to justice sector reforms, and promoting better care for underprivileged street children 

Happy birthday Learned Silk. It’s hard to believe you just turned 70. Harder to believe that you are retiring from active legal practice, while you still look so young, energetic with plenty to offer to the legal profession. What informed your decision to retire now?

Firstly, I retired from AELEX, not so much from legal practice. I will now focus on practising as an independent arbitrator. I retired now because when we formed the law firm in 2004, we agreed on terms of partnership. One of the terms was that, each Partner would devote the majority of his time to the affairs of the practice. Another term was that partners could retire voluntarily at 65, but it was mandatory at 70. I retired in line with the terms of our partnership deed. I had wanted to retire from the partnership at 65, but the other Partners refused. Now I have time to do other things, in addition to practising law, such as focusing my time on justice sector reform issues and promoting better care for street children. 

You have made your mark in international arbitration. You attained the highest peak in the legal profession as Senior Advocate of Nigeria through litigation, but arbitration gradually took the front seat in your professional carrier. How were you able to strike a balance? Kindly, share some tips.

Arbitration took a front seat in my practice, as I became increasingly frustrated with the slow pace at which litigation was being conducted. It is mentally frustrating and physically tiring to prepare a case for trial, only to have the matter adjourned on the trial day for flimsy reasons, such as counsel on the other side seeking an adjournment because his senior in chambers wants to personally handle the matter but is unavailable. It is also frustrating when you submit legal arguments in an effort to develop the law, but the court refuses to consider the line of argument on the ground that it is bound by precedent, when everyone knows all that is required is for the Judge to distinguish the asserted precedent on the basis of a difference in facts. Having said that, I maintained my litigation practice in addition to concentrating on arbitration proceedings, but I then concentrated on what I considered to be cases of commercial importance to the client, or to the development or expansion of legal principles.

The National Assembly just rejected all the gender based bills before it, which has caused an uproar that is yet to subside. How would you rate NASS’s constitutional amendment exercise? Do you think anything good will result from it? Why do you think Nigerian women continue to suffer such discriminatory treatment in the hands of the menfolk? Some say men find it easy to discriminate against women, because women folk do not seem to support themselves, making it easier to pull a divided house down. That the few women who get to the top are so happy to be there, and do not want others to join them there. Even the SAN rank has less than 30 women, out of a total of over 500 people. Kindly, share your views on this

There are many aspects to this question and I would like to treat them separately. Firstly the fact that the SAN rank has less than 30 women out of a total of over 500 people has nothing at all to do with the refusal or indifference of women who have climbed the ladder being unwilling or unable to help other women. The reason, in my humble opinion, why there are still such a low number of women in the SAN rank is because rank is based on litigation criteria and the legal terrain under which litigation practice is conducted in Nigeria presently is very unfavourable to women. For as long as we refuse to accept that there are women in the legal profession by using phrases such as “no ladies at the bar” or “gentlemen in skirts”, then we will be unable to acknowledge that the gender differences in the legal profession need different solutions. It is difficult for a woman who is preparing a case in litigation to spend long hours in the office working towards a trial, when she has a husband and child or children at home who need her attention. How many law offices have creches or provide financial support for children’s day care, so that female Lawyers can concentrate while at work? Then again, the current SAN requirements say an applicant must have conducted cases submitted for consideration from commencement to conclusion. Since litigation sometimes involves travel to attend court in different locations; this aspect also makes it difficult for women who have small children or other dependents such as elderly parents that they are responsible for to practice as litigators, as they would have to travel to appear at every court date, even when the date involves a non-contentious application.. These are the reasons that drive women out of the litigation sector into other aspects of legal practice such as company secretarial or in-house legal counsel; thus, depleting the number of women who are able to aspire to become senior advocates, let alone achieving that goal.

With respect to the gender discrimination bills which were rejected by NASS and have now been resubmitted for reconsideration, my view is that the outcry by women against the rejection of these bills is what has had the positive effect of the bills being resubmitted for reconsideration. That does not however mean that, those bills will pass. It does however, show that the ability of women to work together for a common cause will bring about positive results. I believe that the reaction of men in the National Assembly which resulted in the initial rejection of the gender discrimination bills, was a reaction based on a “less than thoughtful” consideration of the contents of the proposed legislation. The oft touted position that women do not support themselves, is, in my opinion, an argument without any factual basis. The efforts to promote the interests of women championed by the NBA Women Forum and FIDA Nigeria, amongst many other women organisations, clearly put a lie to this position. Organisations such as WIMBIZ [Women in Business and Management] and WISCAR [Women in Successful Careers] are further proof of women helping and supporting each other to climb the ladder to the top, in whatever aspect of our professional lives.

As for constitutional reform in the National Assembly, I am not holding my breath with respect to proposals that involve local government administration. Until such time as the local government structure is fully independent of the State government, development at the grassroots level where Nigerian citizens should have the largest interface with the concept of government will be impeded. Remember that based on the current constitutional requirement for a State Joint Local Government Account, local governments are actually tied to the apron strings of the State government, where financial allocation and resources are concerned. The State government actually controls the amount of funding given to the local governments. When you remember that constitutional amendments passed by the National Assembly must also be approved by a majority of the States Houses of Assembly before such amendment becomes effective, I wonder how easy it will be for any proposed reforms to the local government financial relationships with State governments to be passed at the State levels where Governors exercise influence over State legislators. I am yet to see chickens voting for Christmas!!

You contested two for the office of NBA President, albeit unsuccessfully. Would you say your failed efforts were due to gender discrimination? The NBA has not had a female President since Dame Priscilla Kuye over 30 years ago, who was elected as 1st Vice President and subsequently stepped into Clement Akpamgbo’s shoes as NBA President when he became AGF. Again, we have only had two female General Secretaries, Mrs Hairat Balogun, and about 38 years later, the current Secretary, Mrs Joyce Oduah. Do you believe that maybe if women had made a conscious effort to stand together more, we would have made better progress, not just within the legal profession, but in governance and other spheres of life?

I would not say that I lost my two bids at becoming President of the Nigerian Bar, on the ground of gender discrimination. I believe it was more due to a failure to realise / an unwillingness to concede to the fact that contesting the Presidency of the Nigerian Bar Association has become a ‘political’ enterprise involving alignments of segments/sections of our profession. I was categorically told by a well-wisher that I could not win the election without the backing /nod of a political party, and I needed to court the support of one of the parties, if I wanted to succeed. 

Presidency of the Bar should not be a gender issue, it should be based on competence and the perception of the profession as to the ability of the candidate to deliver the expectations of the members of the Association. So the issue of women voting/campaigning en bloc for a woman just because she is a woman, should be a non-issue. But then, this may be another indication of my naivety. In a society where men are in the majority in positions of power and influence, even where women come together to press for greater inclusion of women in areas where we are currently under-represented, change will be incremental at best. We need to bring the men on board, if the change we want is to be achieved.

Aelex of which you are a founding Partner has grown in leaps and bounds. In a clime where partnerships hardly thrive, what has been the secret of Aelex’s success so far? Is there a succession plan, especially now that you are retiring?

There are law firm partnerships older than AELEX in Nigeria, and I think they should be the ones to answer the question! That AELEX is still standing as a partnership, 18 years after its formation by merger, is, in my view, the result of shared goals and aspirations. We started the firm on the basis of wanting to build a law firm that would outlast its founders; my retirement from AELEX shows we are still on that path. That we started with five founding Partners and had eleven Partners before my exit, shows that we are on the right course. Management of the firm is now in the hands of the non-founder Partners, and I am confident that they will continue to take AELEX to new heights.

The NBA is preparing for another round of national elections this year. What would be your advice to Lawyers and the candidates? Many, especially the Activists, have complained that the NBA had been somewhat comatose in the past few years, not playing the role of a Bar Association; but, now, it seems that the Akpata-led executive has woken the NBA from its deep slumber. How can this momentum be kept up going forward, especially as another complaint is that NBA leadership is not consistent. That when it has a good leader that takes it 5 steps forward, the successor then takes the Association 10 steps backward.

My advice to Lawyers is simple – vote for the candidate that you believe best represents the type of Association that you want, doing the things that you want done for the profession. To the candidates I would say that while the Presidency of the Bar is a ‘feather in one’s cap’, it also comes with tremendous responsibilities and obligations. Any candidate must be prepared to propose solutions to the myriad of problems that currently face the profession, have a road map towards their implementation, and be ready to be confrontational in achieving set out objectives.

As the Buhari administration goes into its twilight, how would you rate their performance over the past seven years vis-à-vis their three main campaign promises, that is, eradication of insurgency and insecurity, the fight against corruption and revamping Nigeria’s economy?

It is obvious that insurgency has not been eradicated, and insecurity has increased over the past seven years. While in my view, insurgency has been somewhat curtailed, the level of personal insecurity has spread to other parts of the country. This is a direct result of the increase of poverty and joblessness, in the country. The increased use of technological and digital platforms has blocked areas of the economy where public officials accepted gratification which supplemented their salaries, and which they used to support relatives and family members. With no free income coming from such sources, and no opportunities for employment, indigent and unemployed youth have turned to kidnapping and banditry as a way of life. Nigeria is not alone, as reports from countries in South America can confirm. 

As to revamping the economy, I think the Government is on the right track; however, putting in place the regulations that will result in a stable economy will give immediate pain to many, before we see the long term gains coming into play. Corruption is a major problem, and I believe a successful fight against corruption can only be waged by a President who seeks only one term in office, as the structures that brought him into office will fight against efforts to remove the corrupt benefits which they enjoy.

What are your views on restructuring Nigeria? Should we revert to the 1963 Constitution and the Parliamentary system? Or should this Presidential system be tweaked to work better? Is zoning constitutional? 

I think Nigeria cannot progress unless it is restructured, both politically and economically. The country must function as a Federation. This will allow the Federation units to develop at their own pace, and focus on areas that are of importance to them. 

The 1963 Constitution as the basis for the restructuring, is, in my view, a good idea. I also believe that the parliamentary system should be reverted to, as the presidential system which we currently operate is too expensive. As of now, there is no difference between any of the manifestos and ideologies of the major political parties. A parliamentary system where you have the government in power and a leader of the opposition, would, in my view, keep the government in power on its toes and ensure its commitment to fulfil its election campaign promises which will be the basis for its re-election. In a parliamentary system, we vote for a party and the leader of the party then takes office; this is somewhat akin to what we are seeing in our present system where we are told that, when you vote, you are voting for the party not for the individual holding the party ticket. 

What kind of Nigeria would you like to see? If it’s different from what obtains now, is it achievable? Many say that our present system is completely inequitable and unworkable, and until certain basics change, we will continue to move on one spot with absolutely no progress. For instance, the monthly basic salaries of medical doctors and judicial officers, are less than the monthly newspaper allowances of members of the National Assembly. This is ludicrous and unjustifiable, but can it change when those that can change it are the beneficiaries of this injustice?

I would like to see a Nigeria, where we believe in the dignity of labour. Where your take home pay, actually takes you home. I would like to see a Nigeria where the focus of our spending at every level is on education, health and social housing. I would like to see a Nigeria where the political structure is on a part time basis, with legislators being paid a daily sitting allowance which should be based on the annual salary of a judicial officer at the equivalent level. It breaks my heart when I watch proceedings in the National Assembly, and both the Senate and the House of Representatives chambers are less than half full on any occasion. Why should they be paid full-time for working part-time? If legislators are paid on a sitting allowance basis, it will encourage those who are actually interested in the business of legislating to come to the chambers and do the work they were elected to do. Legislative aides should be paid directly by the management of the National Assembly and not through their legislators, and the need for a legislative aide should be made and justified to the management of the National Assembly, before such aides are employed.

Thank you Learned Silk.